Catherine Lhamon appears in these excerpts not as a guest but as a subject of discussion by two other guests: R. Shep Melnick, speaking about the transformation of Title IX, and Joe Cohn, speaking about due process on campus. In both treatments she is identified with the Office for Civil Rights (OCR) at the Department of Education, first during the second half of the Obama administration and later as the nominee to lead OCR again under President Biden. The excerpts attribute to her a central role in the enforcement posture of the office across both periods.
The “Dear Colleague” Letter and the Question of Binding Effect
Melnick’s discussion of OCR rulemaking provides the context for the first appearance of Lhamon’s name. He describes a form of rulemaking authorized by statute and issued under the Administrative Procedure Act, which requires a proposal, public comment, an explanation of what was done, and judicial review. In recent decades, he says, the Office for Civil Rights has mostly not used that route, instead issuing a unilateral letter to colleges, universities, and primary and secondary schools that receive federal funds, stating how the office interprets the statute and what recipients are required to do. He notes that the letters say comments may be given after the rule has been issued, which he calls the opposite of what it should be, and that the office considers them legally binding, so that noncompliance exposes a school to enforcement action. Courts, he adds, have frequently deferred to these letters. He characterizes the practice as an evasion of the Administrative Procedure Act and a unilateral effort to say what the law is, and notes that the letters say nothing new is in them while the White House called the 2011 letter a pathbreaking policy Title IX’s Transformation: R. Shep Melnick on the New Civil Rights Debate (2018).
Bob Zadek frames the letter in his own terms, describing it as an interoffice communication in which the office shares its view of what the statute means and what it requires, while the office is also the paying agent that approves the checks schools receive. He says any school receiving it would conclude it had better behave in accordance with the letter or risk losing funds, and calls the implied threat a “your money or your life” letter. He adds that the author of the letter has no statutory authority to share a view at variance with the statute itself. These are Zadek’s characterizations, not Melnick’s Title IX’s Transformation: R. Shep Melnick on the New Civil Rights Debate (2018).
It is against that background that Lhamon enters the excerpts. Melnick recounts a dispute about the legal status of the letters. A couple of years earlier, he says, Senator Lamar Alexander asked Catherine Lhamon, then head of OCR, whether the letters were legally binding, and asked the same of a couple of other assistant administrators at the Department of Education. According to Melnick, they said the letters were not legally binding, while Lhamon said the office considered this to be binding law that must be followed by all schools. Melnick then reports that she later said the office did not really consider them legally binding but expected everyone to comply. He says he is not sure what the difference is, and concludes that if a school does not comply it is likely to be investigated and to have sanctions imposed, which to him is legally binding Title IX’s Transformation: R. Shep Melnick on the New Civil Rights Debate (2018).
A caller, Jacob, then raises the leverage mechanism, comparing it to cases in federal court about withholding federal funds from so-called sanctuary cities. Melnick says he has heard of the case but is not familiar with the legal issues. Zadek says he is somewhat familiar with those cases and with an earlier dispute over Medicare funding, and states that governments are prohibited from using the power of the purse to compel compliance by the states under threat of withholding funds unless the statute permits it, a doctrine he calls “commandeering.” He notes the Title IX question remains open Title IX’s Transformation: R. Shep Melnick on the New Civil Rights Debate (2018).
Gender Identity and the Meaning of “Sex”
Later in the same episode, Zadek asks how gender identity and discrimination fit into Title IX. Melnick answers that this is the hottest topic on Title IX, and begins from the fact that the statute allows sex-segregated facilities and programs in some areas of education, most obviously sports, and also bathrooms, shower facilities, and dormitories. The question becomes how people are assigned to those facilities. When Title IX was enacted in 1972, he says, it seemed obvious that there are male and there are female; today there is a third category of people called transgender, and the question is which facility they should have access to. He says the obvious answer is biological sex, which was what almost everyone assumed at the beginning. Starting in 2016, he says, the Obama administration issued a series of directives saying assignment to sex-segregated facilities shall be based on gender identity, meaning a person’s subjective understanding of whether they are male or female. He argues the statute says “sex,” not “gender identity,” and that the term gender identity was created to distinguish itself from biological sex, so that the interpretation requires playing fast and loose with the words of the statute. He adds that many courts have adopted that interpretation, leaving administrative agencies and courts to argue about the meaning of the term Title IX’s Transformation: R. Shep Melnick on the New Civil Rights Debate (2018).
Lhamon is not named in this portion of the excerpt; the directives are attributed to the Obama administration, and the excerpt breaks off mid-sentence as Melnick says the agencies and courts will be arguing about the meaning of the term.
The Biden Rollback and Due Process
Lhamon reappears in the 2022 episodes through Joe Cohn, who speaks about due process on campus. Cohn agrees with Zadek that the Trump-era rules were fair and set the right balance, and says his organization strongly supported them for that reason. He then says that when those rules were issued, people like Catherine Lhamon, who was head of the Office for Civil Rights during the second half of the Obama administration and was then nominated to retake the helm of OCR under Biden, immediately tweeted that the new regulations take us back to the bad old days where women could be raped with impunity. Cohn says there was an allegation that due process itself undermined the fundamental ability of complainants to come forward, that he wholesale rejects that argument, and that he does not think there is strong evidence to support it Joe Cohn on Title IX and Due Process on Campus (2022).
Cohn goes on to say that it was on that basis that President Biden promised on the campaign trail to make short order of the regulations and rescind them, and that Biden, through Catherine Lhamon leading OCR again, started the process by rescinding them earlier that summer and offering new proposed regulations that strongly roll back a number of the protections put in place during the Trump era. Among the changes he describes: students no longer have the right to a live hearing to contest charges, and losing a live hearing means moving to what is called an investigator model, in which an investigator interviews both parties or whoever else they want and may turn over a summary of conclusions to the other side. He says the accused loses the ability to cross-examine people in real time and to see how they actually answered, because an investigator could miss the significance of a detail. He also says the Trump administration regulations gave students the right to see all of the evidence in the institution’s possession, not just the evidence the school planned to use, the distinction being that turning over only the evidence you plan to use allows exculpatory evidence to be concealed Joe Cohn on Title IX and Due Process on Campus (2022).
Zadek interjects to remind the audience that in a criminal trial it is prosecutorial misconduct for a prosecutor seeking a conviction to withhold exculpatory evidence, and that trials are set aside and convictions reversed if that happens. He says that in the campus quasi-criminal proceedings, by contrast, this is standard operating procedure. That framing is Zadek’s Joe Cohn on Title IX and Due Process on Campus (2022).
The same passage appears in the 2022-12-04 episode, where Cohn’s account of Lhamon’s tweet and of the rescission process is given in nearly identical terms, including the description of the investigator model and the evidence-disclosure change Do you know your rights? (2022).
Across episodes: the two treatments compared
The excerpts show Lhamon discussed in two distinct settings. In the 2018 episode, Melnick treats her as the OCR official who told Senator Lamar Alexander that “Dear Colleague” letters were binding law and later said the office did not really consider them legally binding but expected compliance, and the surrounding discussion concerns whether the office may condition federal funds on compliance. In the 2022 episodes, Cohn treats her as the OCR head nominated to retake the helm under Biden, who tweeted that the Trump-era regulations took the country back to the bad old days and who led the process of rescinding those regulations and proposing new ones. What changes between the earlier and later treatment is the direction of the policy: the 2018 discussion concerns guidance issued under the Obama administration and its binding effect, while the 2022 discussion concerns the rollback of Trump-era due-process protections under Biden. Melnick advances the first account; Cohn advances the second. The excerpts contain no interview with Lhamon and no statement from her in her own voice.
What the sources do not cover
The excerpts do not state Lhamon’s title at the time of either episode beyond the OCR roles the guests describe, nor do they give her educational background, prior positions, or the dates of her appointments. They do not quote her tweet directly; the wording is Cohn’s paraphrase. They do not describe the contents of the 2011 “Dear Colleague” letter beyond Zadek’s reference to it as being about sexual harassment and the rape culture, and they do not state what any case held or which amendment any dispute turned on. The excerpt from the 2018 episode breaks off mid-sentence in Melnick’s discussion of the meaning of the term, and the 2022-12-09 excerpt ends with Zadek’s name and no further text.